Circular No 023/2014
Dated 30 Jan 2014
To Members of the Malaysian Bar
We refer to Circular No 257/2013 dated 29 Nov 2013, regarding the coming into force of the Personal Data Protection Act 2010 (“PDPA”) on 15 Nov 2013. Please refer to that circular for website links to the various personal data protection legal instruments that have come into force.
In light of several queries that have been raised by Members, please take note of the following.
A. Applicability of PDPA
Section 2(1) of the PDPA states that the PDPA covers any person who processes, and any person who has control over or authorises the processing of, any personal data in respect of commercial transactions. The Personal Data Protection Department (“PDP Department”) of the Ministry of Communications and Multimedia Malaysia (“Ministry”) has made clear that under this provision, ALL Members of the Malaysian Bar will have to comply with the PDPA. Registration, however, is a separate matter (please see section B below).
The Bar Council has raised the issue of an exemption in the PDPA to cover legal professional privilege, as such exemptions have been provided in other jurisdictions. The Ministry has agreed to consider this proposal, and the Bar Council will work with the Ministry on this matter.
The Ministry has further agreed to hold workshops to address Members’ enquiries regarding the PDPA. It is hoped that these workshops will be held in February 2014.
B. Partnerships Required to Register
We wish to draw Members’ attention to clause 9(a)(i) in the Schedule of the Personal Data Protection (Class of Data Users) Order 2013 (accessible here), which provides that in respect of a legal business, a “person who entered into partnership under the Partnership Act 1961” is a data user that belongs to a class of data users. When read together with section 15(1) of the PDPA, such a data user is required to register under the PDPA with the Personal Data Protection Commissioner (“Commissioner”) using Form 15(1) (accessible here).
With respect to the issue of registration, the PDP Department of the Ministry has confirmed the following:
(1) Clause 9(a)(i) is intended to apply to a partnership as a legal person, as opposed to individual partners;(2) The requirement for a letter of confirmation from the Bar Council to verify the firm’s status as a partnership has been waived, as the Bar Council will provide the PDP Department with a list of firms that are partnerships. Members are advised to proceed with registration without the need to provide a letter of confirmation from the Bar Council; and(3) Sole proprietors do not have to register with the Commissioner for the moment.
C. Failure to Register
The deadline for registration is 15 Feb 2014, with no possibility of extension. Partnerships that have yet to register with the Commissioner are advised to take note of section 16(4) of the PDPA, which states that a person who fails to register, and “processes personal data without a certificate of registration . . . commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding three years or to both”.
To register, click here to download Form 15(1). Completed forms should be submitted to the Registration Unit, Personal Data Protection Department, Ministry of Communications and Multimedia Malaysia.
For further details or enquiries, kindly contact the Registration Unit by telephone at 03–8911 5113, or:
(1) Noreen Iszani bt Yusak, Unit Head (03–8911 7925; noreen@pdp.gov.my);(2) K Mohan s/o K Kanapathy, Unit Head (03–8911 7987; kmohan@pdp.gov.my);(3) Nurul Ain bt Sutin, Assistant Administrative Officer (03–8911 5113; nurulain@pdp.gov.my);(4) Muhammad Shamsul b A Majid, Administrative Assistant (03–8911 7802; shamsul@pdp.gov.my); or(5) Dayang Siti Fauziah bt Awang Hasbi, Administrative Assistant (03–8911 7914; dygfauziah@pdp.gov.my).
D. Data User Forum
Section 21 of the PDPA provides for a Data User Forum. A Data User Forum may prepare a Code of Practice for a specific class of data users under section 23 of the PDPA. The Bar Council will apply to the Commissioner to be the Data User Forum for the legal services class of data users specified in the Class of Data Users Order, ie partnerships. The Bar Council, via the Data User Forum, will prepare a Code of Practice tailored to the legal profession, to cover the exigencies of legal practice that the PDPA has ignored or has not dealt with sufficiently.
For enquiries, please contact Suhana Mohd Fazil by telephone at 03–2050 2101 or by email at suhana@malaysianbar.org.my.
Thank you.
Richard Wee Thiam Seng
Secretary
Malaysian Bar
If you are a registered user of the Malaysian Bar website, you may click here to access this circular.